Opinion
Civil Action No. 00-3619, Section M
August 7, 2001
ORDER AND REASONS
Petitioner, Darian Sly, has filed an application for post-conviction relief pursuant to 28 U.S.C. § 2254. Considering the petition, the State's response, and the record, the Court finds that the claims presented therein are procedurally barred from review by this Court and an evidentiary hearing is unnecessary. Accordingly, the instant petition for habeas corpus relief is hereby DISMISSED WITH PREJUDICE.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner is a Louisiana state prisoner currently incarcerated in the Washington Correctional Institute in Angie, Louisiana. On December 8, 1992, petitioner plead guilty to armed robbery and was sentenced on May 17, 1993 to 330 months incarceration without benefit of probation, parole or suspension of sentence. He did not timely file a notice of appeal, but filed a motion to reconsider sentence which was denied on December 7, 1993. He again moved to reconsider his sentence on December 6, 1996, which the Court denied. He filed a written motion for appeal on January 17, 1997 which was denied as untimely. He moved for an out-of-time appeal on December 14, 1998, which was granted by the trial court, but was denied as untimely by the Court of Appeals pursuant to La. C.Cr.P. art. 930.8 on December 15, 1999. The Supreme Court denied his writ application on June 23, 2000 as untimely, citing La. C.Cr.P. art. 930.8 and State ex rel Glover v. State, 660 So.2d 1189 (La. 1995).
II. LAW AND ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was signed into law on April 26, 1996 and applies to this petition filed on December 4, 2000. The AEDPA drastically changed the standard of review for habeas petitions. Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996). Habeas relief is available only in instances where the state court decision was based on an unreasonable determination of the facts, or an unreasonable application of federal law, id at 767-69, or where the state court made an egregious error, effectively depriving the In petitioner of his ability to vindicate his federal rights in state court.
In this petition, Sly claims that the trial court erred in calculating his sentence and in failing to articulate reasons for the sentence and that the Court of Appeals and the Louisiana Supreme Court erred in not considering his appeal. As previously indicated, petitioner's appeal was dismissed pursuant to La. C.Cr. P. 930.8. Louisiana Code of Criminal Procedure article 930.8 allows a petitioner three years from the finality of his conviction and sentence within which to apply for post-conviction relief. In Coleman v. Thompson, 501 U.S. 722, 750 (1991), the Supreme Court held:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice
Here, in denying Sly's application, the Louisiana Supreme Court clearly and expressly indicated that its ruling was premised on the untimeliness of the claim under Louisiana Code of Criminal Procedure article 930.8. In addition, there is no evidence that article 930.8 has been applied selectively or irregularly. In Glover v. Cain, 128 F.3d 900 (5th Cir. 1997), the Fifth Circuit held that article 930.8 was an independent and adequate state procedural rule for purposes of determining whether the petition was barred by procedural default.
Thus, petitioner's claims are barred from review by this court unless he can establish cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice as required by Coleman. Petitioner has not met this burden The facts supporting his claims of sentencing errors were known to petitioner at the time his conviction became final and he has not offered reasons for his failure to comply with the state procedural rules.
Finally, petitioner is not entitled to relief under the "fundamental miscarriage of justice" exception to the cause and prejudice standard. This exception applies "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent. . . ." Murray v. Carrier, 477 U.S. 478, 496 (1986). Petitioner has made no such claim in this case.
Accordingly, the petition is DISMISSED WITH PREJUDICE.